Case Note & Summary
The plaintiff, a member of defendant No.2 society, filed a suit against defendant No.1 developer and defendant No.2 society seeking entitlement to flat No.702 admeasuring 830 sq. ft carpet area in a redeveloped building and for execution of a fresh permanent alternate accommodation agreement. The plaintiff also sought ancillary reliefs. The plaintiff took out a notice of motion for injunctions and appointment of a Court Receiver. The defendant took out a notice of motion for judgment on admission in terms of prayers (b) and (c) of the plaint, or alternatively for restriction of the interim order to flat No.702. The parties had entered into a redevelopment agreement dated 14th October, 2010. Under clause 6 of the agreement, any additional FSI due to changes in the Development Control Regulations for Greater Mumbai, 1991 (DC Rules) would be shared equally between the plaintiff and the developer. Subsequently, the DC Rules changed, providing for fungible FSI up to 35% for residential development under Rule 35(4). The defendant admitted the plaintiff's claim for execution of the fresh permanent alternate accommodation agreement in respect of flat No.702. The court held that since the defendant accepted the grant of the relief, the plaintiff was entitled to a judgment on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908. The court also held that the plaintiff was entitled to share in the additional FSI benefits arising from the change in DC Rules, including the fungible FSI. The court granted judgment in terms of prayer (b) of the plaint and directed the defendant to execute the fresh permanent alternate accommodation agreement in respect of flat No.702 admeasuring 830 sq. ft carpet area.
Headnote
A) Civil Procedure - Judgment on Admission - Order XII Rule 6 CPC - The defendant admitted the plaintiff's claim for execution of a fresh permanent alternate accommodation agreement in respect of flat No.702 admeasuring 830 sq. ft carpet area. The court held that since the defendant accepted the grant of the said relief, the plaintiff was entitled to a judgment on admission in terms of prayer (b) of the plaint. (Paras 3-4, 7) B) Contract - Redevelopment Agreement - Sharing of Additional FSI - Clause 6 of the agreement dated 14th October, 2010 provided that any additional FSI due to change in DC Rules would enure to the plaintiff and developer equally. The court held that the plaintiff is entitled to share in the additional FSI benefits arising from the change in DC Rules, including fungible FSI under Rule 35(4) of the DC Rules, 1991. (Paras 5-6)
Issue of Consideration
Whether the plaintiff is entitled to a judgment on admission in terms of prayer (b) of the plaint for execution of a fresh permanent alternate accommodation agreement in respect of flat No.702 admeasuring 830 sq. ft carpet area, and whether the plaintiff is entitled to share in additional FSI benefits under the redevelopment agreement.
Final Decision
The court granted judgment on admission in favor of the plaintiff in terms of prayer (b) of the plaint, directing the defendant to execute a fresh permanent alternate accommodation agreement in respect of flat No.702 admeasuring 830 sq. ft carpet area. The court also held that the plaintiff is entitled to share in the additional FSI benefits arising from the change in DC Rules, including fungible FSI under Rule 35(4).
Law Points
- Judgment on admission
- Order XII Rule 6 CPC
- Specific performance
- Redevelopment agreement
- Fungible FSI
- Sharing of additional FSI
- Development Control Regulations for Greater Mumbai
- 1991
